R. v. Christensen Date:, 2012 BCPC 210

Citation: R. v. Christensen Date: 20120316 2012 BCPC 0210 File No: 178334-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY VAGN CHRISTENSEN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: C. Fedder Counsel for the Defendant: C. Corriveau Place of Hearing: Surrey , B.C. Dates of Hearing: August 15, 17, 23, 24, 25, September 6, 7, 8, November 16; Dates of Hearing: December 15, 19, 2011; January 13, February 6, 7, 8, 9, 16, 20, 2012 Date of Judgment: March 16, 2012

[1] THE COURT: These are Reasons for Judgment in the case of Regina v. Anthony Vagn Christensen.

INTRODUCTION [2] The accused, Anthony Vagn Christensen, is charged by indictment in Information 178334-3-C with 13 counts, all under theCriminal Code, including three counts of possession of firearms without a licence or registration certificate, contrary to s. 91(1), onecount of possession of an unloaded prohibited firearm, an Armi Jager Italy Model AP80 rifle, with readily-accessible ammunition,contrary to s. 95(1), three counts of being an occupant of a motor vehicle in which he knew there was a firearm, contrary to s. 94(1), threecounts of possession of firearms for the purpose of offering to transfer the firearms when he was not authorized to do so under theFirearms Act, contrary to s. 100(1), and three counts of offering to transfer a firearm when he was not authorized to do so under theFirearms Act, contrary to s. 99(1)(b). [3] Mr.

Christensen pled not guilty to all counts on August 15th, 2011. [4] The trial began with a voir dire and continued thereafter as a "Vukelich" or threshold hearing, and as an application to cross-examine the affiant on wiretap authorizations marked as P44 and P48 in the Supreme Court of this Province. Counsel agreed on theprocedure set out in the ruling of the Honourable Mr. Justice Smart in R. v.

Sipes (2010), BCJ, 747 to proceed on that basis. [5] The trial continued on August 15th, 17th, 23rd, 24th, 25th, September 6th, 7th and 8th, November 16th, December 15th and19th, all of 2011, and January 13th and February 6th, 7th, 8th, 9th and the 20th of February 2012. [6] On September 8th, 2011, the court dismissed the application for disclosure made within the confines of a voir dire on theapplication for cross-examination of the affiant of the wiretap authorizations, P44 and P48.

The disclosure sought was limited to mattersrelated to a deceased person, who had previously been one of the three targets of an alleged murder conspiracy, which conspiracy wasthe subject of the wiretap authorizations. The application for cross-examination was also dismissed on that date, with oral reasons. [7] In

summary, the accused did not establish the reasonable likelihood that any questions about the whereabouts of the intendedvictim of the murder conspiracy would establish a basis for excluding evidence on the trial, before this court, dealing with firearmsoffences.

The citation for that decision is 2011 BCPC 397 , 2011 BCPC 0397. [8] The accused, through counsel, then brought an application to purportedly re-elect, which application was dismissed at theinvitation of defence counsel on December 19th, 2011. [9] Thereafter, counsel for the accused brought an application for severance, notwithstanding there was no co-accused at thattime. When the application was argued on January 13th, 2012, counsel (Mr. Richardson for the accused) morphed the application forseverance into an application for a mistrial.

Both of these applications were dismissed with reasons on February the 6th, 2012. [10] Thereafter, the Crown called nine witnesses, all police officers, on February 6th, 7th, 8th and 9th. [11] On February 9th, the defence called two witnesses, Reid Humphris, a friend of the accused, and Nick Thorvald Christensen,the father of the accused. [12] Argument followed on February 20th, 2012 and judgment was reserved until today. ISSUES [13] Counsel for the accused raised an encyclopaedic range of legal issues in the submissions for the accused.

Those issues wereraised in the following order: the legal definition of "possession," weapons trafficking, whether the Armi Jager semi-automatic firearmwas a prohibited weapon, and reliance upon the defence of officially-induced error, continuity of the firearms seized, treatment to begiven to slang in the contents of intercepted communications, and conflicts submitted to have occurred in the evidence of the surveillanceofficers. FACTS [14] In order to establish if any of those issues should be considered, the facts of this case must first be established.

I find that thefollowing facts have been proven beyond a reasonable doubt, and those facts are organized below, listed under the following headings:the Silverado, identification of the accused as the speaker in intercepted communications, firearms, the first intercepted communications,surveillance and arrest of the accused and post-arrest intercepted communications.

THE SILVERADO [15] In Admissions of Fact filed as Exhibit 19 in this trial, it was admitted that the father of the accused was the registered ownerof a purple Chevrolet Silverado pickup truck, B.C. licence plate number 2511-KT, hereinafter called "the Silverado," between October11th, 2008 and October 11th, 2009.

This information was also confirmed by a vehicle registration and licencing certificate filed asExhibit 4 in these proceedings. [16] Based on the evidence I heard in this trial, including the evidence of the father of the accused, the surveillance evidence ofvarious police officers and the contents of intercepted communications, the Crown has proved beyond a reasonable doubt that on August15th, 2009, the accused was operating the Silverado and no other person operated the Silverado at material times on that date. [17] Initially the father of the accused gave evidence, in a strident manner, that he was aware of when his son attended work, thathe met him at work every morning at the store and that he knew what Mr.

Christensen, Jr., was wearing on August 15th, 2009. Whenthe father was confronted with the contents of Exhibit 2, tab 2, lines 15 to 24 during cross-examination, he acknowledged that he did notknow where his son was on the morning of August 15th of 2009; that he had not met him at the store that morning; and because the

father was miles away in Langley, B.C., and his son was in bed in Surrey, he had no ability to observe what his son might have worn to work on that date. As a result, the senior Mr. Christensen is not considered a reliable nor a credible witness.

IDENTIFICATION OF THE SPEAKER IN INTERCEPTED COMMUNICATIONS [ 18 ] Defence counsel made admissions in writing that the recordings of the 17 intercepted communications, and transcripts thereof, contained in Exhibit 2, were accurate recordings of the persons contained therein, and that the date and time of each interception listed in the Notice pursuant to s. 189 of the Criminal Code was accurate. The names and addresses of the registered subscribers for each of the telephones used to communicate to each telephone intercepted were accurately listed in the Notice.

The interceptions were made pursuant to judicial authorization P48 2009, a copy of which authorization was filed as Exhibit 1 in this trial. The transcripts of the intercepted communications were filed as Exhibit 2. [ 19 ] The accused was identified as the speaker in 14 of the intercepted communications, the transcripts of which are contained in Exhibit 2. In R. v. Chan (2001), BCSC 1180, the Honourable Madam Justice Dorgan outlined five factors to aid in identifying an individual in a voice recording.

Those are as follows: a lay witness familiar with the voice of the accused may express an opinion as to the identity of the parties in the communication, even where the witness heard the tapes before listening to the person, self-identification in the recording itself, use of address or name that identifies the speaker, physical surveillance that coincides with the audio recording to establish the identity of the speaker, direct evidence, such as a person testifying that he or she was with the accused at the time the accused was part of the communication, and five, spectrographic analysis. [ 20 ] Having considered these factors, and the evidence heard in this case referred to below, I am satisfied beyond a reasonable doubt that the transcripts and recording in which the accused was named as speaker, subject to one minor error commented on below, that Anthony Vagn Christensen was the speaker so identified.

I make that finding on the basis that the accused is identified by his name, Anthony Christensen, in the intercepted communication at tab 17, and the name "Tony" in the intercepted communication at tabs 1 and tab 16. [ 21 ] Also, the accused is identified by Reid Humphris, a witness called by the defence, as the speaker in the conversation with Mr.

Humphris in the intercepted communication at tab 7. [ 22 ] Furthermore, the surveillance evidence, which I accept as credible and reliable and which is referred to later in these reasons, has the accused struggling with the locking mechanism at the rear bedcover of the Silverado, a subject discussed contemporaneously as the accused in the intercepted communication at tab 4. [ 23 ] There is also direct evidence that the firearms described, in whole or in part, by the accused in intercepted communications at tabs 1, 5, 7, 9, 12 and 13 in Exhibit 2, and the firearms were in fact located in the rear bed of the Silverado after it was seized and searched pursuant to a search warrant filed as Exhibit 13 in this trial.

The voice patterns and speech of the accused were consistent throughout the intercepted communications. [ 24 ] Defence counsel pointed to an error in the designation of a speaker in the intercepted communication at Exhibit 2, tab 10, line 20. If there is an error in the designation of the speaker there, it does not change or alter the phone call during which the accused offers to sell to an unidentified male the three firearms, which the accused describes as a replica .22 AK, a 12-gauge shotgun and a Brit 303 .22 rifle.

THE FIREARMS [ 25 ] Reference is made throughout these proceedings to three rifles which are named in the Information that charges Mr. Christensen before this court. The same three firearms were found in the rear bed of the Silverado referred to in the foregoing paragraph.

I find that the three rifles are each firearms as defined in the C riminal Code of Canada , and those included a 22-calibre Long Rifle Walther KKJ, bolt-action rifle, serial number 38173, a 22-calibre Long Rifle Armi Jager Model AP80 semi-automatic rifle, serial number 008886, and a 12-gauge North American Arms Corporation Model Mallard pump-action shotgun, serial number 42918, hereinafter collectively called "the firearms," all of which were described in the report and certificate of Robert Caunt, Designated Analyst of Weapons, Prohibited Devices, Ammunition, Prohibited Ammunitions and any component part of such things, Exhibit 11.

Mr. Caunt certified that all of the rifles referred to in the counts noted above fit the definition of "firearm" and the Armi Jager Model AP-80 semi-automatic rifle was prescribed as "prohibited." None of the firearms were registered under the laws of Canada and the accused did not hold any licence authorizing him to be in possession of the firearms. [ 26 ] Crown counsel submitted that the Report and Certificate of Analyst was served on the defence pursuant to provisions of s. 117.13 of the Criminal Code within a reasonable time before the Report and Certificate of Analyst was produced in court.

Counsel for the accused did not object to the admission of the certificate, nor apply for leave of the court to cross-examine Mr.

Caunt on the contents of the Certificate, and did not submit any other expert report which contradicted any fact stated in the Report and Certificate of Analyst. [ 27 ] For each of the firearms, a further Certificate of Analyst was filed which stated that no record of a registration certificate was issued under the Criminal Code or the Firearms Act with respect to any of the firearms, Exhibits 8, 9 and 10. [ 28 ] Counsel for the accused made a specific submission that the Crown had called no expert evidence about firearms.

Counsel must simply have overlooked the Report and Certificate of Analyst filed as Exhibit 11. [ 29 ] Counsel for the accused advanced an argument that was based on the decision of William Henderson v. The Attorney General of Canada (2009), ONCJ, 363, wherein the Ontario Court of Justice set aside a decision of the Registrar of Firearms that the Armi Jager Model AP80 semi-automatic rifle was a prohibited weapon and found the rifle was an unrestricted firearm. On appeal, the Honourable Mr.

Justice Tullick of the Ontario Superior Court of Justice, cited as 2010 ONSC 5168 , reversed the lower court decision, finding that the decision of the lower court was clearly wrong and unreasonable. The Superior Court of Justice restored the decision of the Registrar of Firearms. At 2011 ONCA 696 , the Ontario Court of Appeal concluded that the decision of the Superior Court of Justice was correct in result and that based on its review, the Court of Justice made an error in law when it set aside the decision of the Registrar

of Firearms. At paragraph 46 in the reasons of the Court of Appeal of Ontario, the following appears: This order in council prescribes in its

schedule firearms that are prohibited for the purposes of the Criminal Code.

Section 46 of theSchedule prescribes the AK47 rifle and "any variant or modified version of it, including the Mitchell AK22." In other words, theGovernor General in Council has declared the AK22 is a variant of the AK47, the same must be true of a weapon which is the same asthe AK22; namely, the AP80. The correct

interpretation of the Order in Council is therefore that the AP80 is a variant of the AK47. Infinding otherwise, the Provincial Court erred in law. [30] In the following paragraph, in the Court of Appeal decision, the Court of Appeal concluded that the Armi Jager AP80 semi-automatic rifle was a prohibited weapon.

I am persuaded by the reasoning set forth in the foregoing decision of the Ontario Court ofAppeal and find consistent with the expert evidence filed by the Crown in this case that the Armi Jager Model AP80 semi-automatic rifleis a prohibited weapon. [31] Counsel for the accused also submitted that her client was, as a result of this decision in the Ontario Court of Justice, able torely on the defence of "officially-induced error." A useful

summary of the law of officially-induced error is set forth in the headnote ofR. v. Jorgensen (1995), (SCC), 4 SCR, 55, which states: In order for an accused to rely on an officially induced error as an excuse, he must show, after establishing he made an error of law (or ofmixed law and fact), that he considered his legal position, consulted an appropriate official, obtained reasonable advice and relied on thatadvice for his actions.

When considering the legal consequences of his actions, it is insufficient for an accused who wishes to benefitfrom this excuse to simply have assumed that his conduct was permissible. The advice came from an appropriate official if that officialwas one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particularlaw in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appearson its face to be utterly unreasonable.

The advice relied on by the accused must also have been erroneous, but this fact does not need tobe demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before theactions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused'ssituation. [32] The submission made by counsel for the accused that the Armi Jager AP80 is "a variant of a variant" is not a correct readingof the Court of Appeal decision in Henderson as stated in paragraph 46 above.

The Court of Appeal confirmed that the same rifle iscalled by two names; the Mitchell AK22 and the Armi Jager AP80. [33] I am aware that the accused is not required to give evidence and is entitled to remain silent; however, as the accused did notgive evidence and nothing about his knowledge, if any, of the decisions in Henderson v.

The AG Ontario is before this court, or aboutany step taken to obtain advice from an appropriate official, there is no air of reality to this submission and I decline to comment furtheron the submission. [34] Counsel for the accused submitted that the word "replica" used in several of the intercepted communications where her clientwas the speaker identified should be given the meaning defined in s. 84(1); that is, a device which is designed to resemble a firearm butis not itself a firearm. [35] In the circumstances of this case, this submission is completely without merit because the accused, in his conversation withMr.

Humphris, describes the weapon involved as both "a replica AK" and "an AK that shoots 22s." A firearm discharges projectiles,Exhibit 11, such as .22-calibre ammunition, whereas, by definition, a "replica" does not. Curiously, when Mr. Humphris was in thestand, called by counsel for the accused "as someone who has experience with replica AK47s," it was never suggested to him that he wastalking to the accused about the value of a replica which was not a firearm.

He specifically referred to the firearm, which he owns anduses for target practice, as "a replica of an AK47." In answer to a question from defence counsel, "When you say a replica of an AK47,what do you mean," Mr. Humphris distinguished the "replica" as built on an AK platform or frame, but fires single shots or is semi-automatic, as opposed to a fully-automatic AK47. Clearly he was talking about firearms. Throughout his evidence, Mr. Humphris spokeof replica AKs as operating firearms which shoot .22 long ammunition, and that continued in the document he produced, which was filedas Exhibit 23.

At no time during the examination of Mr. Humphris was it suggested that the phrase "replica AK" referred to somethingother than a firearm. In addition, Exhibit 11, referred to above, clearly identifies the Armi Jager AP80 actually seized, in this case, as afirearm. [36] I find that the accused used the word "replica" to mean "copy" and did not intend the technical meaning of "replica" providedin the Criminal Code. FIRST INTERCEPTED COMMUNICATIONS [37] During an intercepted communication which occurred on August the 14th, 2009, Exhibit 2, tab 1, on a cell phone linesubscribed to by the accused Mr.

Christensen, the accused negotiated the purchase of three specific firearms from an individual namedRichard Wayne Thomas. Those firearms were described in the intercepted communication by Mr. Thomas as, first, a .22 AK47 with abanana clip, or AK22 banana clip. Mr. Christensen replied to that, "Okay, that's fine." Second, Mr. Thomas said, "A shotgun," as aquestion. Mr. Christensen replied, "Okay, I'll take the shotgun." Mr. Thomas said, "You'll take the shotgun?" Mr. Christensen replied,"Yeah, everything. What else?" Third, Mr. Thomas said, "I think there is my dad's British 303," and Mr.

Christensen replied, "I'llprobably take that, too." Mr. Christensen knew he was buying firearms for which he had no licence and knew by this conversation thecharacteristics of those firearms. [38] Thomas was initially named as "Rich LNU," that is "last name unknown," in the transcript of intercepted communications, butwas identified by police after the arrest of the accused. The actual identity of Mr. Thomas and his full name was elicited by counsel for

the accused during cross-examination of Det. Thompson. [ 39 ] On August 15th, 2009, at 10:53 a.m., Exhibit 2, tab 2, lines 1 to 15, during an intercepted communication by telephone, the accused and Mr. Thomas agreed "to do it" that afternoon at the store where the accused worked on 120th Street in Delta. THE SURVEILLANCE AND ARREST OF THE ACCUSED [ 40 ] As a result of the contents of the intercepted communications aforesaid, the police arranged surveillance by five police officers around the store on 120th Street.

I heard each of the officers testify, and while their evidence does not perfectly mesh, the evidence they gave concerning the identification of Mr. Christensen at the store and his movements there was credible and reliable, subject only to the comments I make below about the evidence of Cst. McPherson. [ 41 ] When the surveillance of the store was begun by police officers, the Silverado was parked in front of the store. At 3:34 p.m., Mr. Thomas arrived at the store, driving a silver-coloured Mitsubishi bearing B.C. licence plate number 827-LCJ, which he first drove to the front of the store and parked. Mr.

Thomas exited his vehicle and entered the store. [ 42 ] Three minutes later, both Mr. Thomas and Mr. Christensen exited the front of the store and drove their respective vehicles to the rear of the store. At the rear of the store, Mr. Thomas removed three firearms wrapped in a brown towel from his vehicle and handed the three firearms wrapped in the brown towel to Mr. Christensen. Mr. Christensen took the firearms from Mr. Thomas and placed them in the rear bed of the Silverado through the open rear tailgate. Mr. Christensen also received boxes of ammunition and shotgun shells from Mr.

Thomas and placed those in the rear bed of the Silverado through the open tailgate as well. At this point in time, Mr. Christensen had possession and exclusive control of the three firearms and ammunition, which were then in the rear bed of the Silverado. [ 43 ] I am aware that Cst. McPherson, one of the surveillance officers, described the items being transferred from Mr. Thomas to Mr. Christensen as a cardboard box with dimensions of one foot by two feet and a smaller box.

Based on the contents of the intercepted communications noted above, and the three firearms wrapped in a brown towel found in the rear bed of the Silverado, together with the ammunition, I am satisfied that Cst. McPherson's description was simply an error and I reject that description as such. [ 44 ] Mr. Christensen then re-entered the driver's seat of the Silverado and drove to the front of the store and parked. Mr. Thomas left the scene. [ 45 ] At the front of the store, Mr. Christensen went to the rear of the Silverado and manipulated the locking device on the cover of the rear bed of the Silverado.

The locking device was not working. At the same time as those efforts were being made by Mr. Christensen, and in an intercepted communication at 3:51 p.m. on August 15th, 2009, Exhibit 2, tab 4, the accused called an unidentified female to tell her that he could not lock the cover of the rear bed of the Silverado. He expressed concern, because as he said, "I've got some shit in there and I can't lock it." At that point in time, the accused knew the rear bed of the Silverado contained three firearms wrapped in a brown towel and several boxes of ammunition and shotgun shells, very recently purchased from Mr.

Thomas. [ 46 ] During an intercepted communication at 3:58 p.m. on August 15th, 2009, Exhibit 2, tab 5, the accused called an unidentified person and said, "I just bought three AKs," which purchase was questioned by the unidentified person. Also, the accused referred to a "12 Mozzi," which in this discussion of firearms, the only reasonable inference to be drawn is that the 12 Mozzi is a reference to a 12- gauge shotgun which was then in the rear of the Silverado. [ 47 ] In an intercepted communication at 4:07 p.m. on the same date, the accused called an unidentified male, trying to encourage business activity.

Mr. Christensen offered for sale "100 of the things at 22," and he stated, "I've got a guy who will sell them right now." The accused also told the unidentified male, "I got a couple of new scraps I want you to see, if you want to buy them." The unidentified male agreed he wanted to look at "them." I have no means to interpret the words "things are scraps," except by the use of the words "sale" and "buy" in relation thereto to support an inference that Mr. Christensen was trying to do business in some commodity. [ 48 ] Following an intercepted communication at 4:21 p.m. on the same date, Exhibit 2, tab 7, Mr.

Christensen called Reid Humphris, a person called in the trial as a witness for the defence. The accused asked Mr. Humphris of the value of "a replica AK22," that is, "an AK that shoots 22s." Mr. Christensen identified the maker of the firearm as American. Later in evidence, Mr. Humphris valued "the AK that shoots 22s" at $2,000. [ 49 ] In an intercepted communication at 4:45 p.m. on the same day, Exhibit 2, tab 7, Mr. Christensen received a telephone call from an unidentified male. The accused told that male that the accused had three rifles, a replica .22 AK, a 12-gauge shotgun, and a British 303 .22.

The male asked Mr. Christensen for the price of the .22 AK, but the accused had not yet decided on a price. He said, "Let me figure it out, cheap, cheap, cheap, okay?" The accused agreed to telephone the male when he had fixed the price. Mr. Christensen was, in that conversation, offering the replica AK22 and the other two firearms for sale to the unidentified male. [ 50 ] The Silverado was under continuous surveillance by police thereafter until it was seized by the police. No one other than the accused was observed putting anything into the rear bed of the Silverado once it was parked in front of the store.

The accused was in possession and control of the three firearms from the time he received the firearms from Mr. Thomas at the rear of the store until the three firearms were seized by the police. At that time, the accused knew the characteristics of the firearms. [ 51 ] The police arrested the accused inside the store and seized the Silverado in front of the store. The rear bedcover of the Silverado was not secure and opened, by itself, partially when police began to tow the Silverado to an RCMP detachment for search purposes. Det.

Wheeler, a member of the surveillance team, attempted unsuccessfully to secure the rear bed cover of the Silverado using its own locking device. While doing so, the rear cover of the Silverado was partially open and there in the bed of the Silverado he saw three firearms partially covered by the brown towel. [ 52 ] The tow truck driver provided a wide fabric strap, which was wrapped around the entire rear bed and cover of the Silverado to secure the cover of the rear bed and its contents.

[53] The Silverado was subsequently towed to Vancouver Police secure facilities. There, under the authority of a search warrant,the Silverado was searched. In the rear bed of the Silverado, the items found material to this case were three firearms, together withboxes of ammunition and shotgun shells, together with the brown towel. [54] I am satisfied beyond a reasonable doubt of the continuity of the contents of the Silverado and, in particular, the firearms, fromthe time the accused placed the firearms in the rear bed of the Silverado until the Silverado was searched by police pursuant to the searchwarrant.

POST-ARREST COMMUNICATIONS [55] In an intercepted communication between the accused and Joseph Doiron on August 16th, 2009 at 1:56 a.m., Exhibit 2, tab12, the accused described being arrested in the store by a number of police officers. Mr. Christensen told Mr. Doiron that the police hadtold him he had a 12-gauge shotgun, an AK replica .22, and a British 303. Mr. Christensen also told Mr. Doiron that the police hadshown the accused a photo of "the guy who sold the firearms" to Mr. Christensen. Continuing in the same conversation, the accusedadvised Mr.

Doiron that he had told the police he was not intending to sell the guns, but had been pressured by an undercover policeofficer to become involved in the transaction. He said, "I was like -- I didn't know this guy, yo, I thought he was going to kill me if Ididn't buy these things off him." [56] The foregoing statement by Mr. Christensen is an explanation which is clearly contrary to the contents of the interceptedcommunications between Mr. Christensen and Mr. Thomas in Exhibit 2, tabs 1 and 2. The contents of those conversations demonstratethe desire of Mr. Christensen to purchase whatever firearms Mr.

Thomas was prepared to sell, and did not involve any undercover policeagent or any threat. The accused was not pressured to buy firearms but was, by the words that he spoke and his voice inflection, veryeager to buy firearms from Mr. Thomas. Mr. Christensen was clearly not telling the truth to the police officer when he suggestedsomething else.

SUBMISSIONS BY DEFENCE COUNSEL [57] Counsel for the accused submitted that the accused did not have possession of the firearms in this case and made submissionsbased on a brief of cases, each of which I have reviewed with care. [58] Based on the facts as I found them above, the accused took physical possession of three firearms on August 15th, 2009 fromMr. Thomas behind the store on 120th, and drove his vehicle containing the firearms to the front of the store.

At that time, I find as afact that he manually handled the firearms, had knowledge of the firearms and exclusive control over the firearms and relatedammunition, all of which he placed inside the rear bed of the Silverado. [59] The Criminal Code of Canada, in s. 4(3), that a person has anything in possession when he has it in his personal possession,which applies to the facts in this case. In R. v. Anderson (1995), (BC CA), 67 BCAC, 311, the court concluded thatthe Crown must prove knowledge and control and that both coexisted in time. [60] The courts, in R. v. Beaver (1957), (SCC), SCR, 531, R. v.

Hess (No. 1) (1948), (BC CA),94 CCC 48, a decision of the B.C. Court of Appeal, and R. v.

Fisher (2005), BCCA 444, are in agreement that possession within themeaning of the criminal law, where there is manual handling of a thing coexistent with knowledge of that thing, is, and where some actof control is proven, then possession is proven. [61] As the case at bar is not a case where the accused is charged with joint possession or constructive possession, the court willnot consider cases dealing with those issues. [62] Based on the findings of fact which I have made above, I am satisfied beyond a reasonable doubt, after a review of the caselaw, that this accused had actual possession, knowledge and control of the three firearms when he received them behind the store and putthem into the rear bed of the Silverado, which he was exclusively using on the 15th of August 2009.

He drove the Silverado from theback of the store to the front of the store with the three firearms in the rear bed of the Silverado. [63] Counsel also made submissions regarding trafficking in firearms and submitted the Crown had not proved the accused offeredor intended to offer firearms for sale. In Exhibit 2 at tab 5, an intercepted communication made only minutes after receiving the firearmsfrom Mr. Thomas, the accused tells an unidentified person that he has bought three AKs.

Then later in this same conversation, he saysthat he has a 12 Mozzi, which, from the context, as I said above, I infer is a 12-gauge shotgun. Then the accused says, "Once you getstarted, you're like fuck, let's keep the money rolling in." By necessary inference, the only way the money could be rolling from thesefirearms is if they were sold or transferred to another person for value. Exhibit 2, tab 6, which I have noted above, appears to be aconversation to encourage business activity. [64] The next intercepted communication, Exhibit 2, tab 7, 14 minutes later than the previous conversation, is with ReidHumphris.

The accused asks Mr. Humphris to tell him the value of the Armi Jager AP80. [65] In R. v. Ralph (2011), ONSC 3558, the court held that the transfer of firearms involves the actus reus of making an offer andthe mens rea of intending the offer to be genuine. In that case, the offer was found to be genuine on the basis that the product and pricewere discussed with some specificity.

As well, there was an understanding of the regulatory scheme. [66] In the case at bar, the intercepted communication at 4:45 p.m., Exhibit 2, tab 9, is clearly a genuine offer by Christensen tosell three firearms to an unidentified party on the call. The intercepted communication with Mr. Humphris noted above supports theconclusion that the offer to sell firearms was genuine because Mr. Christensen was attempting to value the Armi Jager AP80 firearm. Therefore, I make the finding that Mr.

Christensen made an offer to transfer weapons and the offer was genuine. [67] In the intercepted communication at Exhibit 2, tab 12, the accused lied about his intentions and the circumstances of thepurchase of the firearms by suggesting to police he was pressured by an undercover officer. He arranged the purchase noted in

intercepted communications tabs 1 and 2 in an eager and friendly transaction. No threats nor pressure of any kind were involved. According to his own statements in tab 12, he bought the firearms for $400. The only rational inference to be drawn from these communications is that the accused intended to sell the firearms and make money. CONCLUSION [ 68 ] For the reasons stated above, treating the evidence as a whole, having reviewed the submissions of counsel and the cases cited, and based on the findings of fact which I have made, I find that the Crown has proven its case against Mr.

Christensen beyond a reasonable doubt, and I find him guilty as charged on Counts 1, 2, 3, 4, 5, 6, 7, 11, 12, 13, 17, 18 and 19 of Information 178334-3-C. [ 69 ] I will hear from counsel on R. v. Kineapple at a future date. (REASONS FOR JUDGMENT CONCLUDED)